Crimes Amendment (Unlicensed Drivers) Bill 2018

2018-06-20

Ms PENNICUIK (Southern Metropolitan) (14:34:40) — I rise to speak on the private members bill, the Crimes Amendment (Unlicensed Drivers) Bill 2018, brought to the Parliament by Dr Carling-Jenkins. This bill, as Ms Symes and Mr O'Donohue have already spoken about and as indeed Dr Carling-Jenkins has mentioned in her second-reading speech, has come to this place because on 14 March 2017, 13-year-old Jalal Yassine-Naja died after being hit by an unlicensed driver as he was crossing the road with his skateboard. I extend my condolences to his mother, to the rest of his family and to his friends. Everybody who knew him, I am sure, is grief-stricken by that tragedy. Of course it is always a terrible tragedy to have a young person killed in an accident in that way, effectively leaving home in the morning and not coming home in the evening, so I extend my condolences to them. I cannot imagine what it would be like to lose a child in that way, but I certainly have had contact with other people who have, and in my years in this place I have had similar issues brought to me and they are always very heartbreaking to have to deal with.

I agree with Mr O'Donohue that Olivia Yassine has been very courageous and very consistent in raising this issue in the media and in the community and in gathering the support not only of her family and friends but of members of the community — and clearly of Dr Carling-Jenkins — in bringing this issue to the Parliament for the attention of the Parliament. I too have looked into the background of the issue, and I did listen to the interviews on 3AW — the interview with Olivia Yassine and also with the police and with David Galbally, who provided legal advice on why events took the course they did.

Earlier this year the unlicensed driver was sentenced to 80 hours community service for unlicensed driving plus additional charges, which were unrelated to the tragedy in which Jalal lost his life. Basically the summary of this is that the police determined that the driver was not driving recklessly or dangerously and that the cause of death was accidental. The driver was therefore charged under section 18 of the Road Safety Act 1986 with driving while unlicensed and sentenced according to the current sentence for that offence, which of course is a summary offence with a maximum penalty of 25 penalty units or three months imprisonment, or in this case community service.

The police, as I said, did not determine that the driver was driving recklessly or dangerously and determined that the cause of death was accidental and so did not charge the driver with either culpable driving under section 318 of the Crimes Act 1958 or section 319 of the Crimes Act, 'Dangerous driving causing death or serious injury'. Had the driver been driving in such a way as to be charged with culpable driving or dangerous driving, those are indictable offences that would have been tried before a jury in a higher court. Most probably that driver, had they been charged with either of those offences, would have received a custodial sentence. I was not able to ascertain whether that has been the case in the past, but I would assume that it has been in other cases where a person may have been an unlicensed driver and also there was enough evidence for the police to charge that person with culpable driving or reckless driving, so that person would have gone through the higher court with regard to that charge.

As I said, I listened to the commentary on 3AW. It was very interesting. The police pointed out that there is a gap — in their view and the legal counsel's view — between a person just driving unlicensed and being picked up by the police, for example, for driving unlicensed and being charged for that as a summary offence and being sentenced for that, and then the situation that this case brings to light where a young person lost their life. The problem of course was the lack of evidence to bring on the higher charges — the indictable charges.

I have had a look at the bill, and this bill in essence creates a new offence under the Crimes Act. To follow section 319, which is the dangerous driving offence, this bill will create a new offence for a person who drives a motor vehicle and who knows or is reckless as to whether they are an unlicensed driver and who causes serious injury by driving a motor vehicle, with a five-year maximum term of imprisonment, or causes a death by driving a motor vehicle, with 10-year maximum term of imprisonment. They are similar to the indictable offences of culpable and dangerous driving, which have penalties of up to 20 years imprisonment attached.

Interestingly, though, the bill provides that the new offences would not apply to a person who had previously held a licence and the licence was not suspended for a driving offence and at the time of the death the person was driving with reasonable care. This does raise a concern for me in terms of the aim that Dr Carling-Jenkins is trying to achieve here, in that I believe the provisions of the bill as written now would not apply to the driver of the vehicle that was involved with the accident that happened in March this year. This was also raised by the Scrutiny of Acts and Regulations Committee in their report on the bill. They point out on page 2 of their report:

This defence exempts a person who once had a licence, lost it for a non-offence reason (such as letting it expire) and drove carefully.

I think there is definitely a case for the provisions of this bill and in fact the issue in itself to be more carefully looked at, and so the Greens will be supporting the amendment put forward by Ms Symes that the bill be referred to the Law Reform, Road and Community Safety Committee for inquiry, consideration and report by August this year.

Changes to the law such as this do need to be looked at carefully to ensure that the provisions are appropriately structured to achieve the aims that they are purporting to achieve and also have no unintended consequences in the courts which would only serve to further traumatise the people who are involved in the events that occurred.

I also agree with Ms Symes that the issue of fault is an issue that courts turn their minds to, and they also turn their minds to aggravating circumstances and mitigating circumstances in any case, as they are required to under the Sentencing Act 1991. I note that Ms Symes said — and I know — that the Department of Justice and Regulation are looking at this issue as part of a wider range of the state's driving laws, but I am not sure whether that would be appropriate to be included in that wider review. Nevertheless at the moment all parties here have agreed that the best course of action with regard to this particular bill is to have the Law Reform, Road and Community Safety Committee look at it.

I would also suggest that organisations such as the Law Institute of Victoria, the Sentencing Advisory Council and the Department of Justice and Regulation itself be invited to provide submissions to the committee and/or appear at hearings so that committee can ask them questions about how these provisions may or may not fit into the statutes as they are written now.

So once again, condolences on my part and on behalf of my Greens colleagues to Olivia Yassine and her family for the loss of their son, brother, cousin. We will be supporting the amendment put forward by Ms Symes.